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Court of Protection applications

Jess Flanagan, a solicitor specialising in welfare applications in the Court of Protection has recently joined our team and will be posting regular updates about some of the key issues she encounters.

Funding your application to the Court of Protection

It is safe to say that safeguarding vulnerable adults sits very highly on the social welfare agenda today. We have Winterbourne, the NHS Mid Staffs, the CQC under fire and generally, I think everyone knows and understands a little bit more than they used to about people with disabilities and people who may not be able to make decisions themselves. Given the ageing population and the increase of diagnoses of dementia type illnesses, it is likely that most people will have had experience of someone first hand who simply cannot make a decision for themselves. To some people, decisions about their welfare are more important to them than how their money is managed. This growth in awareness is reflected by an increase in the number of matters heard in the Court of Protection.  With the Court now in its 6th year of making welfare declarations the number of welfare orders made has risen from 182 in 2009 to 835 in 2012.

When does the Court of Protection get involved?

The Court will usually get involved in these types of cases where no agreement can be reached between those (both family and professionals) involved in the individual’s life.  It has power to make declarations about whether an individual has mental capacity, and whether an act or proposed act was or would be lawful in respect of various welfare type decisions such as medical treatment, care, living arrangements and contact.  You can represent yourself in the Court of Protection, but this can cause further complexity and confusion and importantly, delay for certain cases. If a matter is complex, and you find yourself involved in a matter where the other parties (people or organisations involved in the case) are represented by lawyers, you should consider appointing your own lawyer.

How do I pay for a lawyer?

This is perhaps the greatest concern for people who find themselves embroiled in a dispute that may end up in the Court of Protection. Cuts are being made in all aspects of public spending and public funding and certain areas of legal work, such as some family, housing cases and employment are no longer funded by legal aid.  The good news is that legal aid is still available for some applications to the Court of Protection.  This reflects the importance placed on safeguarding vulnerable adults in the public policy agenda. Legal aid for this type of work will be means assessed.  To qualify an individual’s capital must be assessed as being less than £8,000, regardless of the state benefits received. Before April 2013 an individual who was in receipt of either Income Support, income related Job Seekers Allowance or Employment and Support Allowance or Guaranteed Pension Credit would immediately pass the means assessment, but this is no longer the case. If you think that you might be eligible for legal aid it is worth doing a quick check on the online eligibility calculator or you could telephone me for a brief assessment over the phone.

How do I find a solicitor?

The next step, I suggest, is to approach a firm of solicitors, such as Clarke Willmott LLP who are contracted with the Legal Aid Agency (previously the Legal Services Commission) to provide legal representation in Court of Protection matters. I am able to provide legally aided representation in welfare proceedings (not financial) in the Court of Protection so long as an individual is eligible on the basis of their means, the case has merit and the matter raises issues that will require representation at an oral hearing.  However, please note that legal representation before the Court of Protection will not, as a general rule, be funded unless the case involves one of the following:

  • a person’s right to life,
  • a person’s liberty or physical safety,
  • a person’s medical treatment (within the meaning of the Mental Health Act 1983),
  • a person’s capacity to marry, to enter into sexual relations, or
  • a person’s right to family life.

For example, proceedings concerning where someone should live (ie when there is a dispute about whether an elderly relative should go into one care home, or another) are unlikely to be funded unless one of the options may involve an interference with their family or private life, or will result in them being deprived of their liberty.

Contact a Court of Protection solicitor

If you have a concern about the welfare of a vulnerable person, call our specialist Court of Protection team now on 0800 652 8025 or contact us online.

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